Bombay High Court
M/S Cocktail King Pvt. Ltd. Thr. ... vs State Of Maharashtra Thr. Secretary, ... on 20 August, 2018
Author: R. K. Deshpande
Bench: R. K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6212 OF 2017
1] M/s. Cocktail King Pvt. Ltd.,
bearing FL-II license No. 95 and
CL-FLTOD license No. 96, through
its Managing Director - Dhananjay
Govind Deodhar, aged about 65 years,
Occ. Business, R/o. 80, Telecom Nagar,
Saraswati Vihar, Ring Road, Nagpur.
2] M/s. W. P. Likhar, bearing CL-III
License No. 263, through its Partner
Shri Sunil Wamanrao Likhar, aged
about 59 years, Occ. Business,
R/o. House No. 202/2, Abhyankar Ward,
20, Saoner, Tahsil Saoner,
District- Nagpur ...... PETITIONERS
...VERSUS...
1. State of Maharashtra, through
Secretary, State Excise,
Manatralaya, Mumbai...
2. The Collector, State Excise,
Nagpur.
3. The Superintendent, State Excise,
Nagpur.
4. Chief Engineer (N.H.) Public Works
Department, Office of the Chief
Engineer (N.H.) Konkan Bhavan,
5th Floor, Room No. 526, Navi Mumbai,
Maharashtra
5. Union of India, through Secretary,
Ministry of Road Transport and
Highways, 'Transport Bhawan',
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1, Sansad Marg, Gokul Nagar,
Sansad Marg Area, New Delhi.
6] National Highways Authority of India,
through Project Director, PIU Nagpur,
having its regional office at Bungalow
No. 2, Shubhankar Apartment,
Plot No. 159, Ambazari Hill Top,
Ram Nagar, Nagpur. .......... ... RESPONDENTS
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Shri Anand Jaiswal, Senior Counsel assisted by Shri N.G.Moharir,
Advocate for petitioners.
Ms. T. Khan, AGP for Respondent Nos. 1 to 4
Shri U.M.Aurangabadkar, ASGI for respondent No. 5
Shri A.M.Ghare, Advocate for Respondent No.6 NHAI
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CORAM: R. K. DESHPANDE, AND
ARUN D UPADHYE, JJ.
th
DATE : 20 AUGUST, 2018 .
ORAL JUDGMENT (P.C.)
1] Rule made returnable forthwith.
Heard finally by consent of learned counsels appearing for the parties.
2] This petition challenges the communication dated 29.03.2017 issued by Respondent No. 3 - The Superintendent, State Excise, Nagpur, rejecting the claim of the petitioners for renewal of FL-II and CL-III licenses with effect from 01.04.2017 on the ground that the shops of the petitioners are located within a distance of 500 meters from the National-State Highway. The undisputed position is that ::: Uploaded on - 24/08/2018 ::: Downloaded on - 25/08/2018 01:15:12 ::: 3 WP6212.17.odt the liquor shops of the petitioners are located on the abandoned portion of National Highway.
3] Initially notice was issued on 22.09.2017 by this Court. The matter was heard on 27.03.2018, when this Court noticed variance between the stand taken by the National Highways Authority in two different writ petitions. This Court, therefore, directed the National Highway Authority to clarify its stand.
4] The matter was heard on 25.06.2018. A detailed speaking order was passed directing the State Government Authorities as well as National Highway Authorities to state on oath as to whether the notification as contemplated under sub-section (3) of Section 2 of the National Highway Act, 1956, is required to be issued to denotify the abandoned portion of the National Highway on which the liquor shops of the petitioners are located.
5] Thereafter on 06.08.2018, when the matter was again heard, it was found that the counsel for the National Highway Authority was not prepared and therefore, we directed deposit of costs of Rs.2,00,000/- for getting an ::: Uploaded on - 24/08/2018 ::: Downloaded on - 25/08/2018 01:15:12 ::: 4 WP6212.17.odt adjournment. We had also directed the Project Officer, National Highway Authorities to personally remain present before us. We also observed that neither the Union of India nor the respondents are permitting this Court to proceed with the matter, as the stand taken by them was not consistent, the arguments were also found to be inconsistent and repeated adjournments are sought to clarify the position without any progress.
6] On 09.08.2018, the Project Director of National Highway Authority was personally present before us. We questioned him on several aspects and noticed that the arguments before us were advanced contrary to the affidavit filed. We also wanted the Union of India to make its stand on this aspect very clear as we thought that the National Highway Authority is not coming forward with the genuine stand on the position of law. We made it clear that costs of Rs.2,00,000/- will have to be paid by the Union of India, if no affidavit is filed and its stand is not made clear. 7] Shri Aurangabadkar, the Assistant Solicitor General of India, has produced before us the communication issued by the Executive Engineer (Zone-IV) for Director ::: Uploaded on - 24/08/2018 ::: Downloaded on - 25/08/2018 01:15:12 ::: 5 WP6212.17.odt General (RD) & SS, Ministry of Road Transport and Highways, Government of India, New Delhi, addressed to the Chief Engineer - R.O. (Mumbai), Regional Officer, M/o Road Transport and Highways, Mumbai, stating therein as under;
"The matter cited under subject above has been examined further in the Ministry and it is noted that on account of construction of Nagpur bypass, the existing portion of NH is bypassed and "the abandoned length would cease to be a part of NH system and would no longer vest in Government of India and the State Government to whom the abandoned length reverts would be competent to transfer it to any local body under their control". However, as per Ministry's circular dated 23.04.2015, one time improvement in abandoned portion of the NH has been done from the fund of Central Government before handing over the bypassed portion of NH to State Government only due to the paucity of funds with State Government.
It is also stated that changes in the alignment may take place occasionally and where that happens, it is the responsibility of the Central Government to maintain the changes in portion of the National Highways. In the Schedules attached to the NH Act, 1956, the highways are described in general terms and the alignments are not specified. The Central Government may not issue the notification for all such changes in the alignment of NH under sub-section 3 of Section 2 of NH Act, 1956, as all such changes in the alignments of NH portion (i.e. bypasses or else) shall automatically becomes part of the NH and can be administratively made over to any executive agency for their maintenance.
In view of above, it is evident that the contention of the petitioner that the concerned stretch has no longer remains the part of the National Highway is right and CE-RO (Mumbai) will take further necessary action in the matter, accordingly".
8] The aforesaid stand taken by the Government of India before us is not disputed by any of the authorities and ::: Uploaded on - 24/08/2018 ::: Downloaded on - 25/08/2018 01:15:12 ::: 6 WP6212.17.odt they have agreed that now the confusion is removed and there would be no impediment in permitting the petitioners to continue its business of FL-II and CL-III licenses at the places in question and the rejection of renewal of licenses to run the business on such ground was not proper. In view of this, the present writ petition needs to be allowed. 9] In the result, writ petition is allowed. The impugned order dated 29.03.2017 passed by the respondent No. 3 - Superintendent, State Excise, Nagpur, rejecting the application for renewal of licenses is hereby quashed and set aside. The said Authority is directed to consider the question of renewal of licenses of the petitioners in accordance with law and it shall not be rejected on the ground that the shops are located within a distance of 500 meters from the National- State Highway for two reasons i.e. (i) according to all the respondents, the abandoned portion of National Highway ceases to be part of National Highway and (ii) there is no notification issued declaring this abandoned portion as a part of National Highway.
10] So far as the deposit of Rs.2,00,000/- by the ::: Uploaded on - 24/08/2018 ::: Downloaded on - 25/08/2018 01:15:12 ::: 7 WP6212.17.odt National Highway Authority is concerned, we direct that an amount of Rs.25,000/- out of it shall be appropriated to the Head of High Court Legal Services Sub Committee, Nagpur and the balance amount of Rs.1,75,000/- shall be refunded to the National Highway Authority.
JUDGE JUDGE
Rvjalit
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